Should Doctors Be Sued for ‘Wrongful Birth'?

Currently, in 28 states you can sue a physician for malpractice if they don’t disclose a potential health issue that might affect the quality of life of a child after they are born.

But opponents of this legal option are attempting to get rid of so-called “wrongful birth” laws in several states.

“We’re pushing back against the idea that there are certain children that shouldn’t be born, that something like a birth could be wrong,” Eric Scheidler, executive director of the Pro-Life Action League, told Healthline.

That push is gaining traction in Texas, where a proposal that would eliminate lawsuits involving wrongful birth legal action is working its way through the state legislature.

If successful, Texas Senate Bill 25 would not only eliminate this type of malpractice suit, it would also send a message Scheidler and others who oppose abortion rights seek.

What is wrongful birth?

Wrongful birth is its own separate type of malpractice.

In involves a rare situation where a doctor chooses not to tell a pregnant woman about a medical condition a fetus has or doesn’t order the typical diagnostic tests to determine the unborn child’s health.

Abortion rights proponents say these instances deprive patients of the ability to make decisions about their future and their child’s future.

“There are unintended consequences, like in situations where, had a woman known about a harmful condition earlier, she would have sought treatment earlier,” Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, told Healthline. “Taking people’s agency away from them is just bad medicine. It takes away opportunities to seek treatments that might not be abortion.”

How many cases it would affect is hard to say. Rocap said that’s in part because many such cases settle.

What is the definition of “wrong"?

Texas was the first state to recognize wrongful birth legal actions, according to a presentation the advocacy group Texas Alliance for Life made in support of the proposed law.

The current law has been challenged three times and upheld each time, group members told the state senate’s Health and Human Services Committee.

The group said 28 states recognize this law, but nine have since eliminated it through legislative action.

In Texas, the debate began after a 1975 case in which a pregnant woman came down with rubella during her first trimester and later gave birth to a child with defective major organs.

She and her husband sued their doctor for not diagnosing the rubella or telling them about how it might affect the fetus. They won.

A modern risk could come from something like the Zika virus, which can cause microcephaly and developmental delays in babies of infected mothers. There have been 330 cases of Zika in Texas in the past three years, according to the state’s health services department.

But saying that it’s “wrong” to give birth to a child who is born impaired is wrong, said Scheidler.

“Children aren’t mistakes. That’s horrific that someone’s birth could be wrong,” he said. “We make such an effort to accommodate people with disabilities in this country, and this is a direct contradiction of that really excellent institution that the American people have set up. To say that there are people who shouldn’t be born sends a terrible message.”

Scheidler speaks from experience. He has a niece who he says can’t walk or talk.

The case for “wrongful birth”

Defenders of the legal avenue say they are focused on potential parents having all the necessary information to make a decision.

They add they want to ensure there aren’t situations in which a doctor who opposes abortion rights might impose their beliefs.

“Doctors have high ethics and are not in the practice of lying to their patients. But the question is, are there doctors out there who would do that if they could get away with it?” said Rocap. “If it’s so rare why take it off the books?”

Rocap says rolling back the wrongful birth legal option would only ban a specific and rare set of malpractice suits.

Plaintiffs could still sue over other possible malpractice — like if the doctor were to do something harmful in the delivery of the child.

The bill passed the Texas Senate on March 20 and it is now moving through the House.